The debate over Snowden's status as PRISM leaker obscures real issue: The reach of the Fourth Amendment in a digital age

InfoWorld|Jun 14, 2013

America's most secret agency found itself in unfamiliar territory this week: the focus of intense scrutiny by the media, Congress, and the public. Tech industry giants were dragged onto the hot seat as well, and fallout from the furor could set off a far-reaching debate about the limits of privacy in a digital age.

"We didn't fight the Cold War just so we could rebuild the Stasi ourselves," Google chief architect Yonatan Zunger wrote in denial of the allegations.

As Ted Samson reports, in today's hyperconnected world there's an inherent risk of exposing our data when we share information online. Users "have to accept some level of responsibility if information they choose to share through posting updates and images on social networking or sharing geolocation data on their mobile devices becomes exposed."

But the kind of dragnet surveillance conducted by the NSA when it collected records on every call made by Verizon customers has Constitution defenders ranging from Sen. Rand Paul to the ACLU demanding reform. Metadata collected by the agency could allow it to build a detailed profile of every Verizon customer if it so chose, privacy groups worry. And the data could easily be combined with other data sets to allow all sorts of data mining.

Cloud providers are also feeling the heat from the NSA revelations, according to blogger David Linthicum. "The 'NSA scandal' will provide more fuel for the already cloud-paranoid," Linthicum writes. "Those on the fence regarding cloud computing will cite this as another reason to kick the can further down the road. Thanks for nothing, NSA."

We may end up deciding that what the NSA is doing is necessary for our nation's security and that the checks and balances to protect us against abuse are adequate. But it's something we, the people, need to decide -- not a bunch of well-connected cronies behind closed doors, not a bunch of clowns who think the Internet is a series of tubes. It comes down to you and me and the rest of us, together. If nothing else comes out of this, that would be enough.

Almost as if to prove Cringely's point, the focus in Washington has centered on PRISM leaker Edward Snowden, and reaction has been predictably hyperbolic -- ranging from "he's a traitor" (Speaker John Boehner) to "it's an act of treason" (Sen. Dianne Feinstein, chairwoman of the Intelligence Committee).

For a reasoned discussion to begin, we first need to clarify what the Fourth Amendment protections against unreasonable searches and seizures mean in the 21st century. "Aren't universal orders for phone and Internet logs precisely the kind of 'general warrant' that inspired so much fear and loathing in the Framers of the Constitution?" Bloomberg.com asked in a recent article. A 1979 court ruling, in which telephone records were found to be unprotected, "seemed to defy common sense that people didn't regard information about their communications -- with a suicide hot line, a phone-sex operator, a divorce lawyer, a substance-abuse counselor -- as private."

In the 21st century almost everything we do leaves a digital trail. But even the contents of your private messages or files stored in the cloud aren't really yours, according to this ruling. "Simply by using modern technology, Americans have -- for the most part unwittingly -- abandoned the Fourth Amendment's protection for a vast and growing portion of their intimate activities," Bloomberg's Julian Sanchez writes. "As the NSA has made all too clear, unless we update our concept of the Fourth Amendment to fit the realities of the Internet Age, those general warrants will be back -- on a far larger scale, and in secret."

Snowden may end up jailed under the Espionage Act for disclosing classified information. The much-needed debate, however, is over whether he exposed practices that should never have been secret in the first place.